United States v. Briggs, C.A.A.F. (2007)

UNITED STATES, Appellee
v.
Kirk V. BRIGGS, Technical Sergeant
U.S. Air Force, Appellant
No. 06-0178
Crim. App. No. 35123
United States Court of Appeals for the Armed Forces
Argued October 24, 2006
Decided January 25, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain Timothy M. Cox (argued); Lieutenant

Colonel Mark R. Strickland and Captain Vicki A. Belleau (on
brief).
For Appellee: Captain Daniel J. Breen (argued); Colonel Gerald

R. Bruce and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge:
Bryan T. Wheeler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Briggs, No. 06-0178/AF

Judge BAKER delivered the opinion of the Court.
Appellant was tried by general court-martial consisting of
officer members.
Contrary to his pleas, Appellant was convicted
of four specifications of selling military property and one

specification of larceny on divers occasions, in violation of
Articles 108 and 121, Uniform Code of Military Justice (UCMJ),
10 U.S.C. 908, 921 (2000), respectively.
The adjudged
sentence included a dishonorable discharge, forfeiture of all

pay and allowances, confinement for five years, and reduction to
E-1.
The convening authority approved the adjudged sentence,
and waived forfeitures pursuant to Article 58b(b), UCMJ, 10

U.S.C. 858b(b) (2000).
The court below affirmed.
On Appellants petition, we granted review on the following

issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANTS
CHALLENGE FOR CAUSE AGAINST CAPTAIN H.
BACKGROUND
Appellant was an electro-environmental technician whose
duties involved maintaining C-5 aircraft at Travis Air Force
Base.
He was accused of stealing and later re-selling survival
vests from the aircraft he was responsible for maintaining.

Captain (Capt) H, the wife of Appellants flight commander,
was detailed to serve as a court member at Appellants courtmartial.
Capt H raised her hand when asked whether she had

prior knowledge of the case.
On voir dire, Capt H stated that
she had learned from her husband that vests went missing and
that the person or a person -- I didnt know who -- was put on
desk duty.
Upon further questioning, Capt H stated that she
did not know any additional details about the case, and that her
husband was deployed to Kuwait at the time of the trial.
Appellant challenged Capt H for cause, arguing that there
would be an appearance of unfairness if the wife of Appellants
commanding officer were allowed to sit on Appellants courtmartial.
The military judge denied Appellants challenge,
noting that Capt H wasnt aware precisely of which flight the

person was in and since Capt Hs husband was currently deployed
to Kuwait there would be little chance for them to discuss the
case.
The military judge further concluded that Capt H
appeared to be quite sincere and listened quite attentively as

I instructed her on what she could consider and that
regardless of whether she had a discussion with her husband . .
. there is going to be evidence presented that vests were
missing from one of the flights on this base.
Appellant
preserved this issue on appeal by using his sole peremptory

challenge against another member of the panel.
Martial (R.C.M.) 912(f)(4).
Rule for Courts-

DISCUSSION
R.C.M. 912(f)(1)(N) requires removal for cause when a court
member should not sit in the interest of having the courtmartial free from substantial doubt as to legality, fairness and
impartiality.
implied bias.
R.C.M. 912 (f)(1)(N) encompasses both actual and

United States v. Strand, 59 M.J. 455, 458
(C.A.A.F. 2004).
The concepts of actual and implied bias are
separate legal tests, not separate grounds for challenge.

United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000).
Because a challenge based on actual bias is essentially one of
credibility, and because the military judge has an opportunity
to observe the demeanor of court members and assess their
credibility on voir dire, a military judges ruling on actual
bias is afforded deference.
United States v. Daulton, 45 M.J.
212, 217 (C.A.A.F. 1996) (citations and quotation marks

omitted).
However, implied bias is viewed through the eyes of
the public, focusing on the appearance of fairness.

States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).
United
Implied bias
exists when, regardless of an individual members disclaimer of

bias, most people in the same position would be prejudiced [that
is, biased].
United States v. Napolitano, 53 M.J. 162, 167
(C.A.A.F. 2000).
Since implied bias is an objective standard, a
military judges ruling on implied bias, while not reviewed de

novo, is afforded less deference than a ruling on actual bias.

Strand, 59 M.J. at 458.
However, deference is warranted only
when the military judge indicates on the record an accurate

understanding of the law and its application to the relevant
facts.
United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.
2002).
In this case, the military judge addressed Appellants
challenge to Capt H without expressly addressing implied bias or
the liberal grant mandate on the record.
Rather, the military
judge discussed various factors relating to Capt Hs demeanor,

her professed lack of knowledge, and her husbands absence
during Appellants court-martial.
While the military judges
analysis made it clear that he found no actual bias, we do not

know what, if any, reasoning prompted him to deny a challenge
predicated on implied bias.
In United States v. Clay, 64 M.J.
__ (6-8) (C.A.A.F. 2007), we stated:

[I]n light of the role of the convening authority in
selecting courts-martial members and the limit of one
peremptory challenge per side, military judges are enjoined
to be liberal in granting defense challenges for cause.
Challenges based on implied bias and the liberal grant
mandate address historic concerns about the real and
perceived potential for command influence on members
deliberations.
. . . .
In short, the liberal grant mandate is part of the
fabric of military law. The mandate recognizes that the
trial judiciary has the primary responsibility of
preventing both the reality and the appearance of bias
involving potential court members.

Applying the standard for implied bias, we conclude that
the military judge erred when he denied the challenge for cause
against Capt H.
It is true that Capt Hs responses did not
reflect actual bias against Appellant.
Among other things, Capt
H disclaimed prior knowledge of the case beyond the fact that

some vests went missing.
However, there are a number of factors that necessitated
dismissing Capt H from the panel.1
First, her husband was a
member of the squadron whose members safety might have been

implicated by the theft.
safety concerns.
The military judge was aware of the
Immediately before the questioning of Capt H,
two other members had expressed the view that the thefts could
have affected mission safety.
Second, Capt H was married to
Appellants flight commander, whose performance evaluation could

be affected by criminal conduct regarding critical squadron
equipment that was supposed to be safeguarded in a secure area.
Third, in military practice, the immediate commander is often
responsible for the initial inquiry into potential misconduct
occurring within his command and the initial decision as to
disposition.
See R.C.M. 301; R.C.M. 303; R.C.M. 306.
Moreover,
Although military or national security exigencies may create

personnel circumstances relevant to the liberal grant analysis,
there is no indication in the record that this was the reason
for the military judges denial of Appellants challenge for
cause. Clay, 64 M.J. at ___ (11, n.2).

if the immediate commander lacks the authority to dispose of the
matter at his level, he forwards the matter to a superior.
R.C.M. 306.
The intent of the drafters of the UCMJ was to
prevent courts martial from being an instrumentality and agency

to express the will of the commander,2 or to appear to be such
an instrumentality.
The decision to retain Capt H, the spouse
of Appellants immediate commander, unnecessarily raised the

perception of improper command bias.
For these reasons, we
conclude that the military judge erred by denying the challenge

for cause against Capt H, the spouse of Appellants commander
whose safety might have been affected by the alleged theft, on
the ground of implied bias.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed and the findings and sentence are
set aside.
The record of trial is returned to the Judge
Advocate General of the Air Force.
A rehearing may be
authorized.
Uniform Code of Military Justice: Hearings on H.R. 2498 Before

a Subcommittee of the House Committee on Armed Services, 81st
Cong. 606 (1949) (statement of Professor Edmund M. Morgan Jr.),
reprinted in Index and Legislative History, Uniform Code of
Military Justice (1950) (not separately paginated).
7

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UNITED STATES, Appellee

For Appellant: Captain Timothy M. Cox (argued); Lieutenant

For Appellee: Captain Daniel J. Breen (argued); Colonel Gerald

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION

United States v. Briggs, No. 06-0178/AF

Contrary to his pleas, Appellant was convicted

of four specifications of selling military property and one

sentence included a dishonorable discharge, forfeiture of all

The convening authority approved the adjudged sentence,

and waived forfeitures pursuant to Article 58b(b), UCMJ, 10

The court below affirmed.

On Appellants petition, we granted review on the following

He was accused of stealing and later re-selling survival

vests from the aircraft he was responsible for maintaining.

Capt H raised her hand when asked whether she had

United States v. Briggs, No. 06-0178/AF

On voir dire, Capt H stated that

Upon further questioning, Capt H stated that she

The military judge denied Appellants challenge,

noting that Capt H wasnt aware precisely of which flight the

The military judge further concluded that Capt H

appeared to be quite sincere and listened quite attentively as

preserved this issue on appeal by using his sole peremptory

Rule for Courts-

United States v. Briggs, No. 06-0178/AF

R.C.M. 912 (f)(1)(N) encompasses both actual and

The concepts of actual and implied bias are

separate legal tests, not separate grounds for challenge.

United States v. Daulton, 45 M.J.

212, 217 (C.A.A.F. 1996) (citations and quotation marks

However, implied bias is viewed through the eyes of

the public, focusing on the appearance of fairness.

exists when, regardless of an individual members disclaimer of

United States v. Napolitano, 53 M.J. 162, 167

Since implied bias is an objective standard, a

military judges ruling on implied bias, while not reviewed de

United States v. Briggs, No. 06-0178/AF

However, deference is warranted only

when the military judge indicates on the record an accurate

United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.

Rather, the military

judge discussed various factors relating to Capt Hs demeanor,

While the military judges

analysis made it clear that he found no actual bias, we do not

In United States v. Clay, 64 M.J.

__ (6-8) (C.A.A.F. 2007), we stated:

United States v. Briggs, No. 06-0178/AF

It is true that Capt Hs responses did not

reflect actual bias against Appellant.

Among other things, Capt

H disclaimed prior knowledge of the case beyond the fact that

First, her husband was a

member of the squadron whose members safety might have been

The military judge was aware of the

Immediately before the questioning of Capt H,

Second, Capt H was married to

Appellants flight commander, whose performance evaluation could

See R.C.M. 301; R.C.M. 303; R.C.M. 306.

Although military or national security exigencies may create